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26. The Applicant took comfort from the agreement he believed he had reached with The
Law Society's solicitor.
27. When formal allegations were made against him the Applicant appreciated that he had
no defence; he had utilised money held and received by him on behalf of one client
for the purposes of other clients and farther had made untruthful and misleading
statements to two clients. In recognition of his knowledge that he had done wrong he
chose not to seek independent legal advice and decided not to contest the allegations
made against him.
28. The Applicant relied solely upon the understanding he believed he had reached with
The Law Society's representative. Although the Applicant recognised that he had
acted wrongly, he had no dishonest intent. As the disciplinary hearing approached the
Applicant became increasingly concerned with the possible consequences and only a
few days before the hearing he approached Mr Hooper of Counsel and asked him to
appear before the Tribunal and offer a plea in mitigation. His main concern had been
to impress upon the Tribunal that at no time had the Applicant been motivated by
dishonesty nor by intent to defraud any other person nor to make any personal
financial gain.
29. Threats had been made against the Applicant. He had naively checked properly at a
sufficiently early stage the title to the property being sold by Mr and Mrs W prior to
their emigrating to the United States. The principal threat was that the Applicant's
"legs would be broken", although similar intimidatory threats, always expressed in
language riddled with expletives, were made against the Applicant by Mr W and Mrs
W's father. Those clients did have criminal records.
30. The Tribunal's 1982 Findings gave the impression that the Applicant had withdrawn
jointly held partnership moneys from one of the partnership's office accounts. The
moneys had been drawn from a joint account held at Leeds Permanent Building
Society. The account had been credited with about £7,000 received from a new
partner as a premium in consideration of his being admitted to the partnership. A
single account had been opened, the new partner had issued only one cheque. These
moneys were not partnership business moneys. They were personal moneys shared
equally by Mr Montague and the Applicant and each of them withdrew moneys from
the account from time to time for his personal use and without reference to the other.
The Applicant withdrew £500. This was his personal money and represented
significantly less than his half share (£3,500) in the account.
31. In 1982 the Applicant had formed the view based upon the fact that he believed there
was no defence available to him to the allegations which had been brought, that
openness and honesty in relation to the commission of the offences by him was the
proper course of conduct and he did not want to be seen by the Tribunal to be offering
excuses. He had not told Mr Hooper of the threats of violence although he had briefly
mentioned the discussions he had held with Mr MacMichael, who represented The
Law Society.
32. The Applicant had wanted the 1982 disciplinary proceedings to be over as soon as
possible.
33. Mr Hooper did his best on the Applicant's behalf at the disciplinary hearing but his
instructions did not empower him to correct misunderstandings or to do justice to a
plea in mitigation. As a result no reference was made in the Findings to the influence
which the threats of violence from Mr W had on the Applicant.
34. On leaving the disciplinary hearing the Applicant told Mr Hooper of the threats of
violence and of the telephone conversations he had with The Law Society's
representative and Mr Hooper repeated his concerns that the Applicant had not
permitted him properly to present the points he had wished.
35. In its Findings, the Tribunal described the Applicant's case as "sad". It used the
words "untruthful" and "misleading" in relation to the Applicant's conduct, but it did
not describe his behaviour as "dishonest". The Tribunal was invited to find that the
Applicant's behaviour in 1980 had been aberrational owing to the threats and
pressures on him and that his behaviour did not amount to dishonesty in the sense of
the definition in Royal Brunei Airlines v Tan or Twinsectra v Yardley.
36. The Findings were handed down on 3rd June 1982 and, again acting unwisely, the
Applicant attended at Carey Street alone. He was devastated by the Findings which
were read out and when asked by the Clerk if he wished to say anything, such was his
state of mind, he could hardly speak. Having left the chamber and walked into Carey
Street he telephoned a friend who was a solicitor and he told the Applicant that, at the
very least, he should return to the Tribunal and ask for a stay on advertising the
Findings pending an appeal. The Applicant returned to the chamber and made that
request which was refused.
37. Later that day the Applicant spoke with Mr Hooper who expressed surprise at the
severity of the penalty and told the Applicant that he must appeal. He decided to do
so and was assisted by Leading Counsel who offered to act without payment.
38. For some months after the termination of his partnership in December 1980 the
Applicant had not worked regularly although he did from time to time undertake some
advisory work which provided him with some income. He was invited to speak at a
number of conferences where he joined other eminent speakers. He had also been
commissioned by OYEZ Publishing to write a practitioner's handbook on the law of
liquidations which was to take into account the impact of the then recently published
Cork Report. Immediately following his striking off, the contract with OYEZ was
terminated, although he had by that time delivered part of the manuscript.
39. Towards the middle of 1981 the Applicant was fortunate to obtain employment with a
firm of central London solicitors to whom he disclosed the circumstances leading to
the then pending disciplinary proceedings against him and with whom he worked until
struck off in June 1982. Following the striking off, the senior partner introduced the
Applicant to the managing director of a client company of that practice, C Limited.
40. After at least two interviews with the managing director when the reasons for the
Applicant's striking off were discussed, the Applicant was offered employment as a
general commercial manager. C Limited's business was undertaken in international
trading, project constructions and oil exploration in West Africa.
41. Shortly after his employment at C Limited commenced the Applicant reminded the
managing director that he was awaiting a date for the hearing of his appeal. He was
told that the managing director was not prepared to accept the risk of the Applicant's
name again appearing in the national press as a struck off solicitor and possibly
"prejudicing the good name ofC Limited". The Applicant's employment would be
terminated if the fact of his striking off again appeared in the press.
42. The Applicant had been placed in an impossible situation. He was being urged by his
Leading Counsel and a number of other lawyer friends to proceed with his appeal yet
(having been married only on 6th March 1982 three weeks before the hearing before
the Tribunal and having fortunately been able to secure worthwhile employment) he
had to make a decision which, whatever route he chose, was likely to result in
potentially adverse consequences for the Applicant and his wife.
43. The Applicant chose the safety of employment in preference to the appeal despite the
fact that he wanted to be restored to the Roll almost more than anything else. He
withdrew his appeal and remained in employment, deciding that in so doing he would
do his best to become successful in business. Since that date hardly a day had passed
when the Applicant had not reflected with great regret upon his inability to describe
himself as a solicitor and to practise law as his first choice of career.
44. Having commenced employment with C Limited in August 1982, the Applicant was
originally placed in that company's trading department and was taught the rules of
international trading and documentary credits. After some months he was appointed
to a more senior position within that department as a result of which his signature was
required to be affixed to all invoices, banking documentary credits and insurance
documents with the then Export Credits Guarantee Department.
45. Barely one month after joining C Limited, the Applicant was asked to accompany the
managing and the senior director to Nigeria where C Limited was involved in
negotiating a construction project. He later was required to return to Nigeria
accompanied by two assistant directors of a merchant bank. The Applicant accepted
responsibility for the entirety of the legal negotiation on C Limited's behalf with the
merchant bank and the Export Credits Guarantee Department of a high value contract.
46. In London the Applicant acquired more responsibility for the day to day legal
operations ofC Limited's business but save for the documents relating to C Limited's
trading, at no time was he exposed to or given sight of any financial information
relating to the company. Initially he believed that this was due to his striking off and
accepted the fact.
47. Late in 1984, the Applicant was invited by the Board to become a director and almost
simultaneously with that appointment was asked to attend a board meeting and to sign
the statutory accounts for the previous financial year. The Applicant was aware of no
reason why he should not sign these accounts and was given a draft copy. C
Limited's auditors were Ernst & Young and the Applicant was given to understand
that these accounts had been fally audited and required only the approval of the Board
before being signed off by Ernst & Young.
48. After reviewing the draft statutory accounts, the Applicant had been puzzled to note
that the trading position they revealed did not reflect his understanding of the position.
Accordingly he requested sight of the working papers and was horrified after some
days of review to discover a discrepancy in the region of approximately £7.5m arising
from what appeared to be the improper drawdown of moneys from the Nigerian
project with which the Applicant had been so closely involved in 1982.
49. The Applicant was appalled to discover this fraudulent behaviour and felt as though
his world was collapsing around him. Those feelings were made more intense by the
fact that his first child had been bom on 14th September 1984. Having been struck off
he had been forced to seek and had found with difficulty another seemingly promising
career which seemed to be disappearing before his eyes only thirty or so months after
it had begun.
50. The Applicant's first reaction had been to speak with the other Board members of
C Limited and to inform them of what he had discovered and to make it plain that he -
would not be willing to sign those accounts with the suggestion that they, too, ought
not to do so. Initially the reaction of one or two of the more senior directors was to
suggest that the Applicant was mistaken or that he had misinterpreted the working
papers. When that argument had clearly failed it was suggested that the failure on the
part ofC Limited to deliver signed audited accounts to the Inland Revenue, the
Registrar of Companies and to the company's bankers and other creditors would
cause the company to cease trading with consequent loss of employment to all
members of staff which, in forceful terms, it was pointed out, would include the
Applicant. At various times farther references were made to the difficulty in which
the Applicant would find himself given his status as a struck off solicitor.
51. Against the wishes of his fellow directors the Applicant visited C Limited's bankers,
financiers, trade creditors and a senior partner of Ernst & Young to advise them of
what he had discovered. He was concerned not only with the possible criminal
aspects of these facts but also with the potential and probable insolvency of
C Limited.
52. Over a period of many months, the Applicant arranged meetings with all interested
parties which he attended and he sought to assist in the winding down ofC Limited in
an orderly manner by restructuring a number of agreements, loans and other contracts.
The potential losses which might have ensued had C Limited passed into involuntary
liquidation were significantly mitigated. The Applicant had saved a substantial
investor from substantial loss, but had also had to terminate the employment of a
number ofC Limited staff who had been the Applicant's colleagues.
53. The Applicant came to leam that the ultimate beneficial owner ofC Limited's Swiss
holding company was a Nigerian Chief. When the Chief learned of the Applicant's
concerns he sought variously to flatter the Applicant promising him employment as
his personal European representative, and to threaten him by suggesting that he would
let it be known that the Applicant had been responsible for the frauds saying that this
would be believed of a struck off solicitor and that in any event the Applicant would
be tarnished in the minds of all based upon the adage of there being "no smoke
without fire". When the Chief realised that the Applicant was not to be swayed by
these blandishments and threats, he attempted blatant bribery and, on two occasions
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